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Answer the questions in the discussion question set 2.200 – 250 words each in the format of 2 paragraph.
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Few Americans have ever taken the time to learn
precisely how the settlement of the continent was
justified by the Europeans. Mythological stories of
the first Thanksgiving have often merged with the
equally vague idea that the lands were empty and
waiting for the civilizing hand of European man. Did
the Europeans, badly needing a place to pray, simply
walk ashore and begin allotting lands, laying off
plots, and planning for future suburbs? No, the
Europeans were forced to deal with questions concerning the ownership of lands, and the morality
and, indeed, the legality of taking lands claimed by
the original inhabitants. Exploration and settlement
required a good deal of intellectual effort, which resulted in concepts by which European men could relate to North American men. The Europeans were
equal to the occasion, and developed a theory which,
naturally, gave them all of the advantages.
The new theory had theological overtones of great
importance which would be reflected in the great
Spanish debates of 1550 at Valladolid about Indians,
as well as in the writings of English, French, and
Swiss intellectuals. The new agreement was called
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VINE DELORIA, JR.
the “doctrine of discovery,” and was an integral part
of international law, as defined by the European
nations, for several centuries. In practice the theory
meant that the discoverer of unoccupied lands in the
rest of the world gained a right to the land titles as
against the claims of other European nations. It accorded the Indians only aboriginal title.
“Aboriginal title” is a legal concept, ultimately endorsed by the Supreme Court of the United States,
which describes the nature of ownership of land held
by the Indians within the legal framework of the
Anglo-American judicial system. It is a concept which
has its origins outside of the courts of the AngloSaxon heritage. Since it is a pragmatic, politically
created concept of the European powers, in discussing it we are forced to use the Western perceptions
of what the Indian use of land and ownership
meant. This requires that we reject our knowledge of
the Indian civilizations and consider Indian rights in
light of what Europeans imagined them to be in the
European system.
The attempted integration of Indians into the
existing structure by Europeans was on both a conscious and an unconscious level. It was done not for
the benefit of Indians but for the preservation of the
existing European civilization. Fifteenth-century
Europe was a marvelously structured and selfassured universe. Europeans were a pugnacious and
hardy people, tempered by the constant warfare
that had raged for hundreds of years across their
continent, and were immune to the diseases that
would devastate the rest of the world. One might
call them the weeds of mankind. They were refining
a vast and efficient military (especially naval) technology. Strains of nationalism were increasing. The
Spanish had begun to test their strength by defeating
the Moors at Granada, ending a thousand years of
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87
Moorish influence on the continent and driving the
Jews from the country. The financing of an expedition by Columbus to discover a new spice route to the
Indies was further manifestation of this rising nationalism. The Spanish were confident of their place
in the hierarchy of the world, assured by the exactness of their knowledge and controlled by the tenets
of their church. The return of Columbus and his
Indian slaves marked the end of the grand illusion
that the known world was finite and rational, and
the beginning of modern Europe.
Upon Columbus’ return from his voyage of discovery, the Spanish monarchs soon became aware of
Portuguese intent to challenge Spanish right and interest in these new lands. It was convenient for Spain
that Pope Alexander VI was Spanish and considerate
enough to issue a series of papal bulls which benefited the Spanish rulers. Ferdinand and Isabella were
granted an exclusive interest in the lands and islands
to the west of the Azores and Cape Verde Islands in
May of 1493. While Ferdinand and Isabella were
pleased, Joao II of Portugal was not. The ensuing
Portuguese and Spanish communication resulted in
the Treaty of Tordesillas, in 1494. It established a
Portuguese-Spanish division of the world. By defining geographic boundaries, the Treaty of Tordesillas
prevented a potential clash of interests and a potential clash of armies.
Henry VII of England had turned down the Columbus brothers and their wild ideas about reaching
the Indies by sailing west. When John Cabot, another
Genoese, appeared in England in the years immediately following Columbus’ voyage with a scheme
which would make England’s merchants the financial equals or superiors of the Venetian spice traders,
Henry decided to accept a proposition in which
Cabot paid for the cost of the voyage. Cabot’s suc-
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cessful voyage to Newfoundland would form the
foundation for the English claim to North America.
Following the Cabot voyage, the other European
powers would send expeditions to North America,
clearly indicating their intention not to be bound to
the Spanish-Portuguese division of the world according to the papal bulls, which, Sir Walter Raleigh
pointed out, “could not gore so well as they could
bellow.” At this point, the Europeans had to work
out a method of establishing and preserving their
land claims. Spain and Portugal had set examples in
their voyages of exploration, and they had set an example in their land division, not by papal bull but by
the Treaty of Tordesillas. This was the genesis of the
doctrine of discovery. It can be ascribed to a desire
for accommodation among the international powers.
It was developed in total disregard of the fact that
these new lands were occupied by the Indian nations.
However, it was a proposition to which the Europeans readily adhered, because there appeared to be
enough land to propitiate the various powers. Most
important, they did not want to have to go to war:
Any profit that they might find would be exceeded
by military costs if they had to fight to protect their
interests.
Once it was apparent that great wealth could be
generated from colonial possessions, the leaders of
Europe became concerned that unless conflicting
claims to land in the New World were resolved
peacefully, a new round of warfare in Europe might
be touched off. To prevent this from occurring, the
European nations came to a gentleman’s agreement
with respect to claims in the New World. Thus, a
corollary of the doctrine of discovery was created, to
the effect that disputes in the New World between
colonists would not carry over into Europe. Therefore, if a French trader was murdered by Spanish
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89
adventurers on the Mississippi River, the incident
was of political importance only to the Spanish Viceroy and the French Governor. They were expected to
work out any reparations which might be necessary.
The converse was not true, however, and the seventeenth and eighteenth centuries saw the frequent
transfer of European conflicts to the North American
colonists by the mother countries.
As exploration developed, so did the rationales
behind the doctrine of discovery. The discussions in
ensuing centuries would include Vattel, Victoria, Las
Casas, Sepulveda, Locke, Montesquieu, More, Blackstone, and many others. The white Europeans were
to have the Indian lands because the Indians were infidels rather than Christians, hunters rather than
farmers, monsters rather than men, or by reason of
the generous gifts of European civilization and technology, or by reason of conquest, or by reason of the
fact that the king owned everything. We are now
aware of the logical or factual error of these writers,
and of their resort of pure fabrication in concepts
such as conquest.
The Spanish Charles V’s resort to scholarship
must have been less than satisfactory. The great debate in 1550 between Las Casas, arguing for Indian
rights, and Sepulveda, arguing against Indian rights,
was inconclusive. The great theologian and jurist
Franciscus de Victoria was providing his Spanish
monarch with such unsettling answers about his
overseas empire as the following:
. . . the aborigines in question were true owners,
before the Spaniards came among them, both
from the public and private point of view.
Felix Cohen in his Handbook of Federal Indian Law
summarized Victoria’s argument this way:
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Since the Indians were true owners Victoria held
discovery can be justified only where property is
ownerless. Nor could Spanish title to Indian
lands be validly based upon the divine rights of
the Emperor or the Pope, or upon the unbelief or
sinfulness of the aborigines. Thus, Victoria concluded, even the Pope has no right to partition
the property of the Indians, and in the absence
of a just war, only the voluntary consent of the
aborigines could justify the annexation of their
territory. No less than their property the government of the aborigines was entitled to respect by
the Spaniards, according to the view of Victoria.
[p. 46.]
The Swiss jurist Vattel had first attempted to explain the doctrine of discovery, and had developed a
theory which could best be described as benign and
universal communism. According to the Vattel theory, each nation took that portion of lands which its
way of life required, and the inevitable development
of sedentary civilization’s complex economic system
meant that lands which had been devoted to hunting and grazing had to be turned to agricultural use.
By 1650 the great oceanic explorations had given
way to civilization, although much of the Pacific remained to be explored. Instead, the nations of Europe
turned on the Americas like the Visigoths on Rome.
The riches in furs in North America and gold in
South America brought thousands of plunderers
whose sole concern was making a quick fortune with
which they could return to the old country. They
were unconcerned over the legal standing of Indians,
and since they had no intent of staying and colonizing, the question of land title never arose.
The lethargy of the English in exploiting the New
World was a combination of several factors: 1) the
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lack of immediate riches in the lands they discovered; 2) a constant outlet for aggression in the politics at home; and 3) basic misjudgment of the land’s
potential. With the restoration of the Stuarts in
1660, a measure of civil order returned to England.
With the conclusion of the Thirty Years’ War and
the Peace of the Pyrenees, Europe’s interest turned
to a less savage occupation: the more intense struggle for power and money. Europe’s interest in the
New World during the next hundred and fifty years
can be classified in three categories: 1) areas where
the local products were easily extractable and had an
immediate market in Europe; 2) forced labor where
the local economics could be reorganized, usually
through the institution of slavery, to procure the
product for the world market; and 3) the transplantation of Europe into America, a phenomenon that
existed in two forms in conjunction with the exploitative concept and as new frontiers were transformed
into European-style homes. It is with the emerging
frontier philosophy that the real question of Indian
title arose.
The English who arrived at Jamestown in 1607
were concerned over the title of lands, since property
was the basis for Anglo-Saxon law. The colonists and
the mother countries were faced with the problems
of defining the rights of Europeans against Europeans in conflicting claims in the New World. But
what was the extent of Indian property rights as
against Europeans’, and how were these rights, if
existent, to be treated?
The second question facing the colonists was much
more difficult to answer. The problem of assuming
the Indian title to lands had both legal and moral
implications. No settler wanted to settle or purchase
lands which might have some aspect of Indian title
remaining with them. Nor did the colonists want to
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DELORIA,
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suffer the accusation by the European nations that
they had swindled the inhabitants of the New World.
The Puritans particularly felt that confiscation of
property was wrong regardless of who practiced it or
against whom it was directed.
The eventual solution to the problem was the creation of a complex theory that encompassed tradition,
morality, and the old Anglo-Saxon property concepts.
Again, the crucial distinction between methods of
land use and the creation of wealth which characterized the European and the Indian became important. While both groups “occupied” the lands to
which they claimed title, various reasons were
advanced to justify the “higher” use of the colonists
as opposed to the “lesser” use of the Indians. It was
this basic theory that found its strongest articulation
in Johnson v. Mcintosh.
Counterbalancing the Puritan guilt of the wrongness of taking another’s property was the realization
that they were up against the wall. Obviously, to
recognize the Indian title as sacred as the title of an
English landowner would have left them in an
untenable position: They would have been unable to
purchase any land at all. To ignore the Indian would
spell disaster. To escape the dilemma, they espoused
different theories to justify the taking. The justifications were not presented in any sort of chronological
order, nor was any one colony necessarily committed
to supporting any particular theory. It is easy to argue
inconsistent theories when the only judge is one’s
conscience.
The most obvious justification for reducing the
status of Indian occupancy rights was Sepulveda’s
argument, which was resurrected to remove Indians
from the class of people that laws apply to. This
justification depended primarily on a recognition of
military superiority and a proper psychological atti-
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93
tude. As soon as the colonists had built up the military strength to ignore the previous generosity of Indians, this became a popular notion.
The Puritans needed not only justification, but
approval from God; not surprisingly, they looked to
the Scriptures for guidance. After careful examination, they found that not one right existed to the land
but two, civil and theological, and both were ordained
by God. The Bible provides that man must go forth
and multiply; since man cannot multiply where there
is no room, the discovery of a new continent was by
divine revelation. America was obviously meant to be
occupied by Christians fulfilling their deity’s command. While the right to ownership was not fully
covered by this argument, legal title was of little concern; the issue was whether the Scriptures could provide guidance. While many leading colonists pointed
out the absurdity of the argument, reason vanished
before practical political realities of the day.
The second rationale embodied the classic Puritan
work ethic. The famous English jurist Blackstone
wrote of the evolution of private property, and, as
seen by him, property was fundamental to the civilization of man. Europeans failed to see that their
classification of states of man’s civilization was a
justification of conditions after the fact, and
depended upon a willingness to accept complex technology as the sole criterion for determining the value
of societies.
The role of the farmer, his natural right of ascendancy over the hunter and grazer, his paramount right
to possess the land, the necessity to create courts to
enforce the rights of the farmer—all these were a
continuing theme in the exploitation of the American
continent. These themes appeared to the average
colonist to be simply a common-sense explanation of
the universal laws of nature. The transmutation of
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land use from a natural right shared by all men to a
private-person right protected by governments was
not questioned. The ascendance of the agriculturalist,
with the prototype of Adam in the Garden of Eden,
was a multi-purpose theme which justified Western
conceptions of property and was sanctified by both
God and the laws of men.
One of the final and more sophisticated arguments
for taking the lands of the aboriginal peoples involved
the transmission of the benefits of civilization to the
uncivilized. Taking the lands by whatever means possible was justifiable because, in return, the Indians
were receiving the great benefits of Western civilization, which had allowed the European peoples to create such military and economic power as to make it
possible for them to dispossess other peoples. The
argument was most familiar when posed in Rudyard
Kipling’s famous admonition to “take up the white
man’s burden.”
While England, France, Spain, Holland, and Sweden were laying claim to the North American continent on the basis of the doctrine of discovery, and
European theologians, philosophers, and jurists were
justifying this doctrine, some colonists were coming
to different conclusions about rights to the land,
despite the pan-European intellectual, religious, and
social matrix. One of these men was Roger Williams:
As early as 1633 Roger Williams believed that
the king had no moral right to claim by right of
discovery the land occupied by the Indians. To
Williams the patents of Massachusetts Bay,
Plymouth, and the other colonies were of no
value, for the king had granted something that
he did not possess. As a true Christian, Williams
felt he could not recognize these illegally granted
rights. He proposed to purchase for a reasonable
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price the land of the Indians, deeming it the only
proper means of acquiring the right to occupy
the lands.
This struck at the heart of the early colonial
governmental plan, which was based upon the
same patents and rights as the rights to land.
This was possibly as much the cause of Roger
Williams’ banishment from Plymouth as were
his purely religious views. Carrying his conviction into practice when he started to settle at
Rhode Island, Williams immediately purchased
land from the Indians. On March 24, 1637,
Cononicus and Miantonomo, the two chief
sachems of the Narragansett, confirmed the
grant made two years earlier to Williams. (Marshall Harris, Origin of the Land Tenure System
in the United States, pp. 163-4.)
Although it met with initial success, it was ultimately a vain attempt, for “Williams, despite his
brave stand against the royal patent, was eventually
forced to request a charter from the English parliamentary government in order to prevent the Rhode
Island Colony from being devoured by her neighboring English colonies.” (Wilcomb Washburn, Red
Man’s Land, White Man’s Law, p. 41.)
Following the American Revolution, it became necessary for the United States to find some relationship
between its patricidal act of rebellion and the
philosophical principles which appeared to govern
mankind. Part of the justification of the American
Revolution had already been expounded in the
Declaration of Independence, and during the war
itself Thomas Paine had articulated a “Common
Sense” justification of the acts of colonial rebellion
in terms that made the revolution appear as an evolutionary and progressive step by the Americans.
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The new government attempted to follow the lead
of Great Britain in developing its Indian policy. In
1763 the King of England had set aside the lands of
the western slope of the Appalachian Mountains
through Royal Proclamation for the Indian tribes of
the continent, and banned further exploration and
settlement west of this line until there had been adequate negotiations with the tribes who would be
affected. The United States Congress, in its famous
Ordinance of 1787, followed this precedent and
defined the pattern of settlement for the old Northwest (which covered the area of Ohio, Michigan,
Wisconsin, and th …
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